HICKSONS 2017 HEALTH LAW FORUM WRAP UP

HICKSONS 2017 HEALTH LAW FORUM WRAP UP MARCH 2017

CREATING SUSTAINABLE VALUE

INTRODUCTION On 15 March 2017 we were delighted to host our annual Health Law Forum. The Forum is designed to provide those working in the health care sector with a series of presentations from eminent speakers that address both legal issues and challenges facing the health sector generally. This year we were fortunate to secure five highly regarded speakers being Angelene Falk, Deputy Commissioner, Office of the Australian Information Commissioner; Professor Matthew Large, Psychiatrist; Dr Jonny Taitz, Director, Paediatric Patient Safety, Clinical Excellence Commission; Hugh Dillon, Former Deputy State Coroner, Coroners Court of NSW; The Hon. Justice Peter Richard Garling RFD, Judge, Supreme Court of New South Wales. This wrap up provides a short summary of each of the speaker’s presentations. Should you require any further information please do not hesitate to contact us.

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CURRENT ISSUES FACING THE HEALTH SECTOR Angelene Falk Deputy Commissioner, Office of the Australian Information Commissioner Deputy Commissioner Angelene Falk of the Office of Australian Information Commission presented on the current privacy issues facing the health sector as well as strategies to assist practitioners to avoid privacy breaches. Privacy law in Australia is governed by both Commonwealth and State legislation and has its origins in human rights law. It provides a framework for, amongst other things, the protection of personal information. The Privacy Act 1998 is the Commonwealth law which regulates the handling of personal information about individuals. Specific to the health sector the state Privacy and Personal information Protection Act 1998 (PPIP Act) outlines how New South Wales public sector agencies such as hospitals manage personal information. In an era of ever growing technology, the protection of one’s privacy and personal information is a challenge faced by public sector agencies. The implementation of strategies to mitigate risks of breaches is therefore of paramount importance. One of the key aspects of mitigating the risk of breaching privacy and inappropriately disclosing personal information is adopting a notion of transparency whereby consumers of the health sector are given prior notice as to the way in which their personal information is to be collected, handled, stored and shared.

Upon completion of a risk management assessment reasonable steps need to be taken to appropriately secure personal information and ensure at the minimum the physical security of collated information. The consequence of not appropriately securing personal information results in the potential damage of one’s business reputation. It is worth noting that the health sector is in general well regarded. The main areas in which complaints regarding privacy are made relate to the access of one’s personal information and the inappropriate disclosure of personal information. With the advent of new technologies the importance of data protection is of ongoing concern. Public agencies should have a data breach response plan in place. Relevantly to the health sector the government’s Privacy Amendment (Notifiable Data Breaches) Bill 2016 has been passed which mandates data breach notifications. This is to come into effect as of 23 February 2017. The newly-passed law means organisations that determine they have been breached or have lost data will need to report the incident to the Privacy Commissioner and notify affected customers as soon as they become aware of a breach.

To watch a video with the key points of Angelene Falk’s presentation click here.

Public sector agencies including hospitals should undertake risk management assessments to ensure that breaches in privacy are minimised. In doing so, for the most part, the identification of physical security risks such as secure filing spaces and computer hacking are obvious and can be rectified. However, risk involving human error proves a greater challenge.


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DEALING WITH THE RISK OF SUICIDE Professor Matthew Large Psychiatrist

The focus of Professor Large’s presentation was aimed at addressing the issue of uncertainty in the clinical sector in suicide risk assessment. Professor Large considered whether we can reduce uncertainty about suicide with knowledge of suicidal thoughts and behaviours. Despite eliciting as much information about a patient as we can, Professor Large states that you can never be certain of suicide risk on any particular day as it is something that is intrinsically unpredictable. Further despite the focus on gaining more statistical evidence and despite the widespread assumption which underlies suicide guidelines with lists of risk factors worldwide, there is simply no evidence of reducing the uncertainty of suicide as a result. Professor Large highlighted that risk categories have weak discrimination, not much more than the odds of suicide associated with being of male gender. Professor Large concluded that asking about intentions of whether the patient is suicidal is important diagnostically from a clinical point of view but may not assist from a risk assessment point of view.

Even though it is unpredictable to determine suicide risk in a patient, clinicians need to: 1. be sympathetic and undertake a complete assessment of the actual needs of the patient; 2. conduct a risk discussion from a diagnostic clinical point of view, rather than risk assessment; 3. respect the patient’s decision making capacity; 4. continue the move to universal standards of care and precautions; 5. limit the use of involuntary care to more emphasis on least restrictive options; and 6. document rationale thinking when assessing patients and making decisions in relation to their care. There continues to be a lack detail in the clinical records of patients. It is important that the clinical records describe and canvass the reasons as to why certain factors have lead the clinician to make their decision including weighing up the risks and benefits of the decision.

To watch a video of Professor Matthew Large’s presentation click here.


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UNDERSTANDING WHOLE OF SYSTEM HARM Dr Jonny Taitz Director, Paediatric Patient Safety, Clinical Excellence Commission

Dr Jonny Taitz provided an informative overview of the Clinical Excellence Commission’s (“CEC”) NSW data, reporting and incident management systems, including the Root Cause Analysis, which are used to provide a better understanding of healthcare associated harm in adults and paediatrics. The CEC is responsible for leading safety and quality improvement in health systems in NSW and Australia. The CEC has established many successful programs over the last 12 years, including the well known “Between the Flags – keeping patients Safe” and “SEPSIS KILLS”. In order for the CEC to be able to identify what aspects of our healthcare system require improvement, the CEC obtains data which a range of sources including IIMs (Incident reporting data), Root Cause Analysis data, health information exchange and death review data. The data system is reliant on reporting of incidents. Fortunately the culture of reporting appears to be on the increase with an annual growth of 5% reporting rate each year. The Root Cause Analysis (RCA) is a primary method used to investigate and analyse all clinical SAC1 incidents and lesser SAC incidents at the discretion of the chief executive, to identify the root causes and factors that contributed to the incident. Dr Taitz observed that in 2015 there were 483 SAC1 reports received and there were 503 RCAs reviewed in 2015. All RCA reports are reviewed by the relevant CEC RCA review subcommittees. There of 4 sub-committees and these are general clinical, mental health, maternal and perinatal an children and young persons. Dr Taitz noted that in 2015 the general clinical committee reviewed 249 RCA reports and the mental health committee reviewed 200 of the RCA reports. This data indicates that the greatest burden for the system in terms of harm is the adult clinical medicine sector. The data also revealed that the most frequent 2017 Hicksons Hicksons 2017 Health Law Forum Wrap Up

risk factors contributing to the outcome of the reported incident, included, among other things: failure to recognise deteriorating patients, sepsis, shared GP or other care and out of hours presentations. The data has also suggested that more care planning, cross team communication, adherence to policy/guidelines and observation and monitoring (for maternal perinatal patients) is required. According to Dr Taitz it is critical that the senior staff who review the RCA findings actually communicate these back to the clinical staff in order to facilitate system improvement. In terms of paediatrics, according to the NSW data, SAC1 incidents are very rare (25 per year) whereas there are around 200 SAC2 incidents per year. Review of this data therefore allows for a better understanding of the trends in paediatrics healthcare. Dr Taitz advised that the data for the reported SAC2 incidents tells us that by far, the most incidents occur in 12-16 year old patients. Dr Taitz identified that this was largely due to depression and anxiety in young people. The data also revealed that the most harm appears to occur in wards as opposed to emergency or intensive care units. In addition, Dr Taitz said that similar to adults, the data revealed that the most frequent risk factors contributing to the outcome of the reported incidents included, among other factors: failure to recognise deteriorating patients and sepsis. Even with the implementation of the Between the Flags and SEPSIS KILLS programs, these continue to be primary issues for the NSW health system for both children and adults. Dr Taitz says that this will be one of the focuses for the CEC in 2017 as “time is life” and we need to increase the quality and safety in these areas.

To watch a video of Dr Jonny Taitz’s presentation click here. 5

MEDICAL INQUESTS – THE PROS & CONS AND HOW TO MAKE THE SYSTEM WORK BETTER? Hugh Dillon Former Deputy State Coroner, Coroners Court of NSW

Hugh Dillon presented a paper at the Hicksons Health Law Forum on 15 March 2017 concerning the role of the Coroner and the nature and purpose of inquests. Mr Dillon noted that the basic task of a coroner is to establish, if possible, the identity of the deceased person, the date and place of the person’s death; and the cause and circumstances of the person’s death. Inquests, which are conducted in public, are intended to be independent, objective, fair examinations of the available evidence relating to the circumstances of a person’s unexpected or unnatural death. Parties whose interests may be affected are entitled to seek leave to appear, to be represented, to ask questions and to know the evidence that may affect them and to be heard in relation to any findings that may be made. This is especially if there is a suggestion that they may be subjected to criticism by the coroner or by another party. In NSW, about 6,500 deaths are reported annually to coroners (out of a total number of deaths in NSW of about 50,000) and coroners conduct about 200 inquests per annum.


A coroner will make a decision about holding an inquest after considering the police brief, the autopsy report, the views of family members, any independent expert reports obtained by the coroner and any other material obtained as a result of investigation by the coroner. When exercising the discretion to conduct an inquest a coroner may consider whether the case raises issues of public health or safety and, if so, whether an inquest is likely to lead to recommendations that will assist with the prevention of future deaths of a similar kind. If a Root Cause Analysis (RCA) investigation has been carried out into a hospital death, a coroner will seek the RCA report and consider whether or not an inquest is appropriate or likely to be useful. The answer will depend on a number of things such as whether the RCA investigation appears to have been thorough, whether it identified any systematic issues, whether it made any recommendations for improvements and the quality of those recommendations, and whether there are issues concerning the professional conduct of any of the health professionals involved in the case.

To watch a video of Hugh Dillon’s presentation click here.

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THE SPECIAL COMMISSION OF INQUIRY TO INVESTIGATE ACUTE CARE SERVICES IN NSW PUBLIC HOSPITALS The Hon. Justice Peter Richard Garling RFD Judge, Supreme Court of NSW

Following a series of high-profile medical mishaps in the New South Wales public hospital system, a Special Commission of Inquiry was commissioned to investigate Acute Care Services in NSW Public Hospitals. The Report was handed down in November 2008 and included 138 recommendations. The Commission was set up because in 2007 public trust and confidence in the public hospital system had been tarnished by a number of adverse occurrences, including two high profile and extremely tragic incidents. The first incident occurred on 25 September 2007 when Jana Horska presented to Royal North Shore Hospital 14 weeks pregnant and experiencing symptoms that suggested she was at risk of miscarriage. Ms Horska was not seen within the required time and after 2 hours, miscarried in a hospital toilet in very distressing circumstances. The second incident involved a 16 year old girl Vanessa Anderson who died in 2005 at Royal North Shore Hospital after being struck in the temple by a golf ball. The Coroner’s Report found that deficiencies in care and communication between doctors adversely impacted her treatment, leading to her death. A Special Commission of Inquiry was established and Justice Garling was appointed to inquire and report on the delivery of acute care services in public hospitals in NSW. The Commission found the NSW public health system was of a good standard but was unable to deal with the increasing pressure placed upon it by increased demand particularly from an ageing population, stagnant funding and increasing costs.


The Commission made 139 recommendations and the success of these reforms necessitated the creation of 4 “pillars” upon which the reforms would be centered: 1. Setting up a Bureau of Health Information – the Bureau was established in 2009 to access, interpret and report on all data relating to the performance of every public hospital, including safety and quality of patient care, and to facilitate its interpretation and communication to the public on a regular basis. 2. Strengthening of the Clinical Excellence Commission (CEC) – CEC is a body devoted to safety and quality of public hospital healthcare systems. 3. Establish Agency for Clinical Innovation (ACI) – established in January 2010, the ACI works to devise innovative and cost effective models of care by engaging with knowledgeable clinicians who then educate the system widely and champion innovation and improvement. 4. Creation of the Health Education and Training Institute (HETI) – HETI was established in April 2012 and works closely with LHDs, specialty health networks, other public health organization and health education and training providers to improve education and training for NSW Health staff. In his closing remarks, Justice Garling noted that the constant criticism of the public health system being in dire straits was not justified and ultimately undermined public confidence in one of the better health care systems that provided healthcare to a population in a geographic area larger than some European countries and employed over 90,000 full time staff.

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If you did not receive an invitation to this year’s event and wish to receive an invitation to our next Health Law Forum, please contact us:

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